November 26, 2004

Won’t Anybody Listen, Please?

I was going to wait and post this as my final hurrah but I have become increasingly dismayed at lack of attention towards a proposed and practical solution.

Any intellectual discussion of the future of copyright seems to come to the same common conclusions: (1) legislative proposals have proven fruitless and ill-suited for the technology age, (2) technological innovation will be severely restricted through strict copyright enforcement, (3) the “horse is out of the barn” such that the internet and thus p2p is here to stay, and (4) the ONLY possible solution is for big media (RIAA, MPAA) to compromise with the p2p/technology (CEA). It seems that if anyone came up with a solution to the problem such that neither side had to compromise at all, that theory would be pursued with the same vigor, tenor and conviction etc. that surrounds the debate at present. Right? Well if you said yes, you would be wrong. There is a no-compromise solution on the table, the problem is that it just keeps getting buried under the crap that intellectual theorists and legislators keep feeding us. If you already recognize the solution excuse me while I “bloviate.”

The solution is staring us all straight in the face, its screaming to be taken seriously, its so obvious that it hurts – I’ve become a broken record this semester, but time and time again the conclusion that there is no viable solution brings me back to the logical solution – sue individual infringers. File civil suits, criminal suits, leisure suits, three-piece suits; please just trust me and file some suits. It seems every time I bring this solution up, it is immediately shot down even quicker - that I am dismissed as being an extremist to a problem that needs compromise. Without the typical hyper-technical exploration that almost every other proposal receives, suing individual infringers is dismissed without even beginning to look into the practicality of the proposal. I actually did begin rethinking my position on this solution – was I being too harsh? Was it unfairly singling out individuals and punishing them for the collective guilt of those like them? Is the number of p2p users so large that it is financially impractical to bring enough suits to deter the infringing conduct? Moreover, is it true that no politician in their right mind would support suing individual users?

When Pamela Samuelson came to speak at USD, I brought up the possibility that suing infringers might solve the “intellectual property misappropriation” problem (that’s the PC way of referring to it), in that it makes the content side happy and does not chill technological innovation. Ms. Samuelson could not have been quicker to laugh off (literally) the proposal. She cited the fact that suits have already been filed and there have been no studies showing that the message resonates with p2p users that if you share you will be held accountable. Professor Solum seems to agree and believes that it is simply impractical to sue an adequate number/percentage of sharers in order for this proposal to really become a solution at all. In addition Professor Solum believes that p2p attitudes would only become a political issue if politicians supported harsh penalties and criminal sanctions, and that given politician’s risk averse nature in the quest for reelection there would be no political support for holding individual sharers accountable.

I like so many others have become more frustrated with this subject than any other. Compromise appears to be the only solution and a compromise (at least at this juncture) is practically-speaking not going to happen. But then I came across some support for my “evil” and “draconian” proposal, albeit from an unlikely source – Mark Lemley….

Being named recently as one of the original members of the advisory board of the EFF your first suspicion must be that I am taking Mr. Lemley’s comments out of context or perhaps I am looking to a proposal so old that he should not be held to what he said at the time. In fact the article to which I must credit my newfound rethinking was published by Mr. Lemley along R. Anthony Reese in Stanford’s Law Journal in May 2004 and is entitled, “Reducing Digital Copyright Infringement Without Restricting Innovation.” (I just realized that Professor Solum posted this on Copyfutures on June 12 but since our semester had not then begun I think it was overlooked by many people).

For the sake of space (this is already too long) I won’t copy the abstract and when I refer to the paper as being written by Mark Lemley keep in mind that it was actually written by both he and Professor Reese. In short this paper advances the widely accepted belief that “going after makers of technology for the uses to which their technologies may be put threatens to stifle innovation.” Mr. Lemley goes on to state, “optimal digital copyright policy would do two things: stop deterring innovators, and permit cost-effective enforcement of copyright in the digital environment.” Mr. Lemley’s article addresses the relative short history of copyright in the digital age, examines three of the most important cases in this area (Napster, Grokster, and Aimster), addresses their belief over why suing facilitators is wrong on many different levels, and then finally posits why suing individual “keystone” uploaders is one of “two possible alternatives that might provide ways out of the digital copyright morass.” Mr. Lemley rightly notes that eliminating piracy in its entirety is neither practical nor ideal (b/c of the costs involved in weeding it out entirely), his solutions are meant to restore the incentive to create new works through bringing down infringement levels akin to the rates of infringement in the “traditional copyright environment.”

The substance of his uploader argument is this. Targeting “keystone” uploaders (those who have uploaded several hundred songs) with current sanctions is an ample deterrent for several reasons. First, suits or even threatening to file suits that may potentially bankrupt college kids or their parentsis obviously a large deterrent. Second, college kids are likely to be deterred at the thought of having to go to jail. A fact largely unknown (there’s only been one case that I know of), is that copyright law provides for criminal penalties that include jail time. Mr. Lemley states that copyright law provides that if willful infringers reproduce or distribute works of over $1,000 in value during a 6 month period they may be held criminally liable.

The logical response to suing “keystone uploaders” focuses on two points: first, civil deterrents have had little or no effect thus far so why should they work now, and second, it is rationally impractical to sue enough of the 60 million p2p users to have a significant enough deterrent effect. Through straight facts Mr. Lemley sold me on the possibility of suing enough individual users to make this proposal a practical solution.

"While the number of users of p2p networks such as Morpheus and (before the injunction) Napster is massive, the overwhelming majority of those users engage only in downloading. Indeed, by one estimate, 3% of the users of a p2p network upload 97% of the files on that network. These high-volume uploaders also seem to be the users most likely engaged in uploading illegal content, rather than providing access to legal files. They are easy to identify, both because they will repeatedly appear in content searches and because many run so-called "supernodes" that facilitate fast downloads. Reducing infringement on a p2p network doesn't require targeting downloaders, who may in any event have a legitimate reason for downloading some copyrightedcontent. It just requires targeting uploaders, and in particular the much smaller number of high-volume uploaders."

Given this factual support Mr. Lemley posits that suing a small number of high-volume users will prove effectual for one main reason: uploaders are likely to be easily deterred. Uploaders are not paid to contribute and in many cases use substantial amounts of their own bandwith to enable piracy. The serious threat of civil/criminal action may induce active uploaders to become passive downloaders. Uploaders on the whole tend to be less criminally-inclined than other wrongdoers and the thought of the negative repercussions is particularly looming for educated, college kids who on the whole are more conscientious of their future as compared to others.

“The college student may feel she has more to lose and less to gain from this particular criminal activity than does the burglar. And since she has no strong stake in being an uploader, she may simply decide to quit.”

Given all of these logical factors Mr. Lemley reduces the necessary number of suits to a number that Ms. Samuleson and all of the other critics of this proposal might be able to stomach. With the goal that everyone has in mind of reducing infringement without hampering innovation, Mr. Lemley states that if we need only deter the 90,000 uploaders at a given time, prosecuting 5% or 4,500 individuals will achieve what almost everyone has already conceded as unachievable. Moreover Mr. Lemley states:

“Prosecuting fewer than 4500 people--say, 1500--might deter some but not all uploading of illegal content. Partial deterrence will not only reduce the infringement on p2p networks by eliminating the deterred users as sources of infringing files, but will also increase the burden on the remaining high-volume uploaders, as the mass of downloaders in a network shifts to the remaining uploaders. The result may be a cascade effect, in which causing some uploaders to stop providing illegal content (and deterring others from starting to provide such content) imposes technical burdens that in turn cause more uploaders to drop off the network, further increasing the technical burden (and the percentage risk of prosecution) for the remaining uploaders.”

There are obvious drawbacks to the lawsuit proposal.

First is the fact that even though suits against keystone uploaders are punishing someone who admittedly has broken the law, singling out individuals necessarily allows other wrongdoers to escape liability-free. The cliché phrase “you reap what you sow” takes on a whole new meaning because not only do you reap what you sow but you reap what others sow too. Thinking about this, it doesn’t seem all that bad – in fact singling out wrongdoers happens all the time in other areas of the law. As Lemley has shown, stern enforcement on a relatively small percentage of uploaders should prove to have wide sweeping effects on p2p as a whole. Coupled with this fact is that the music industry (as Nate Lindell posted on Copyfutures), whether well intended or not, is spending more of their own money to educate the public on infringement. The hope is that the ignorance argument won’t remain a serious objection by keystone defendants. However, considering the current static state of practical solutions to an admitted problem, this is one area where the ends justify the means.

Second, some uploaders will certainly prove to be more risk taking than others. Bringing lawsuits against a percentage of keystone uploaders (5%) isn’t going to eliminate illegal p2p in its entirety, but it certainly seems the most viable and attractive solution (a compromise is not a practical reality) towards the simultaneous reduction in piracy and promotion of technology.

Third is the issue of political acceptability. Unless some government prosecutors are willing to file suits against keystone uploaders this is a solution without legs to stand on. To my surprise Mr. Lemley’s article pointed out a fact whose opposite we have been engrained just to accept as the truth. Pursuing individual uploaders has political backing and certainly has strong lobbying supporters. On several occasions Congressmen have criticized the Justice Department for not enforcing the NET Act, which imposes criminal liability on willful filesharers (the NET Act enjoys bi-partisan support from the likes of Joe Biden, Lamar Smith, Rick Santorum, Diane Feinstein etc.). If urging John Ascroft to begin implementing the NET Act’s criminal sanctions isn’t strong and outspoken political support in favor of taking on individual infringers I’m not sure what is.

Fourth, bringing suits against keystone uploaders will deter these individuals from uploading copyrighted materials in the future but suits against individuals will do nothing to the current materials available en masse from the ever-growing number of p2p facilitators. In the short run this is certainly true. However in the long run unless servers like Kazaa attract users for legal reasons their advertising revenues will dry up and they will be forced to choose between disbanding or coming to an agreement with copyright artists for licensing rights. To be sure p2p downloads will never be completely erased from the web, but this is a loss the content industry will be more than willing to accept.

The demi-god hero to all copyfighters around the world seems more and more to be Larry Lessig. Well take it from the man himself, “it's not Kazaa that infringes Madonna's copyright; people infringe Madonna's copyright” (Post, free registration required). Over and over on Copyfutures and nearly every other blog, I have read that the music industry is throwing their money away by suing individual users and that it is an impractical and even “pathetic” tactic in a losing battle. Mr. Lemley’s possible alternative is obviously one to which I steadfastly believe will solve the copyright problems (both short and long term) that so many academics have simply thrown up their hands in frustration and screamed the word “compromise!” These facts and logical presumptions lead me to question the motivations of those people who shrug off this viable alternative. Suing individual keystone uploaders is a solution which demands more attention.

A proposal which eliminates (or at least radically reduces) intellectual property misappropriation, while at the same time does not impede the growth of legal technological advancement is a solution which both sides of the lobbying table can shake hands upon. There is no justification for the argument that enabling technological innovation necessarily demands less copyright protection. I am as much for technological innovation as the next guy, but I have come to realize that restoring copyright protection to levels relatively akin to the “traditional copyright environment” is not a matter of compromise between content owners and technology manufacturers. Stern lawsuits targeting a small though significant percentage of keystone uploaders appears to be the answer to the cryptic puzzle that IP law has become to all of us.